A defendant
sentenced to a subordinate prison term under the Determinate Sentencing Law may
be resentenced to a longer term if the principal term is reduced under
Proposition 47, as long as the aggregate term does not increase, the Court of
Appeal for this district ruled yesterday.

Sellner was
sentenced to eight months in that case, last year, with that sentence to be
served consecutive to a three-year term simultaneously imposed in another case.
Following passage of Proposition 47, Judge Gilbert Romero denied a reduction to
a misdemeanor in the case in which the shorter term was imposed, but granted it
as to the other case.

The judge then
resentenced Sellner to two years for the felony, with credit for 737 days
served, so that she was immediately released.

The attorney
general argued that Sellner’s release made the appeal moot. Justice Kenneth
Yegan, writing for the Court of Appeal, disagreed, citing Penal Code § 2900.5(a),
which requires the sentencing court to grant a credit of at least $30 per day
towards outstanding fines or fees if a sentence is reduced to less time than
the defendant has served.

As for the
defendant’s claim that the court lacked jurisdiction to resentence her, Yegan
said that was without merit. He cited §1170.1(a) as creating an exception to
the general rule that a trial court loses jurisdiction once execution of
sentence begins.

The subsection
provides that “when a defendant is sentenced consecutively for multiple
convictions, whether in the same proceeding or in different proceedings, the
judgment or aggregate determinate term is to be viewed as interlocking pieces
consisting of a principal term and one or more subordinate terms.”

Yegan explained:

“Here the eight
month sentence was a subordinate consecutive term to the three-year sentence in
case number 2011005319,” the jurist explained. “Based on the Proposition 47
modification of the principal sentence, the trial court not only was vested
with jurisdiction to resentence in case number 2014007685, it was required to
do so….Appellant was not strictly ‘resentenced’ but, instead, ordered to serve
the sentence originally imposed, two years county jail.”

The
defense argument that the new sentence is unconstitutional because it exceeds
the eight months previously imposed would be correct, the jurist said, “[w]ere
one to put horse blinders on and view only the sentence” in that case. But in
the “big picture,” Yegan said, the defendant was sentenced to an aggregate of
three years and eight months originally, which was then reduced to two years
after Proposition 47 was applied.

“When the
principal term is no longer in existence, the subordinate term must be
recomputed,” he wrote. “That is the case here. As long as the recomputed
term is less than the prior aggregate term, the defendant has not been punished
more severely for the successful filing of a Proposition 47 petition.”